On March 12, 2009 a federal court for the Eastern District of New York found that a workplace drug test is not covered by the New York Consumer Protection Act.[1] The Act provides:
“[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.[2] * * * . . . any person who has been injured by reason of any violation of this section may bring an action” for damages.”
The Court, citing previous decisions found that “[a]s the Consumer Protection Act’s name indicates, its purpose is to protect the consuming public. Generally, claims under the statute are available to an individual consumer who falls victim to misrepresentations made by a seller of consumer goods through false or misleading advertising. * * * Courts considering the scope of the statute have repeatedly held that ˜a consumer, for § 349 purposes, is one who purchase[s] goods and services for personal, family or household use.’ * * * “New York courts have generally found that business-to-business transactions do not give rise to § 349 claims, particularly when the disputed transaction does not have ramifications for the public at large.” It was undisputed in the case that the contractual relationship was between an employer and a laboratory. The record showed that the “commodity” in question – a drug test – was not a consumer product but a service that only a business would purchase.
The Court found that the Plaintiff failed to show that the drug testing transaction had ramifications for the public at large. The Court said: “Simply put, the drug testing at issue in this case falls outside the scope of [the Consumer Protection Act].”[4]
1-Siotkas v. LabOne, Inc. et al., 01-CV-6242 (SMG), 01-CV-6243 (SMG)(3/12/09).
2-N.Y. GEN. BUS. LAW § 349(a).
3-Id. § 349(h).
4-The Court further found that the Act didn’t apply because the services were performed outside the state of New York. ___________________________________________________________________________________
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation’s schools. Attorney Judge, JD, LLM can be reached at:708-771-9474 or bjudge@lawsinhand.com
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